State v. Holler, s. A96A1845

• Decision Date: 17 December 1996
• Docket Number: A96A2337,Nos. A96A1845,s. A96A1845
• Citation: 479 S.E.2d 780,224 Ga.App. 66
• Parties: , 97 FCDR 50 The STATE v. HOLLER. HOLLER v. The STATE.
• Court: Georgia Court of Appeals

Page 780

479 S.E.2d 780

224 Ga.App. 66, 97 FCDR 50

The STATE v. HOLLER.

HOLLER v. The STATE.

Nos. A96A1845, A96A2337.

Court of Appeals of Georgia.

Dec. 17, 1996.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for Appellant.

William C. Head, Atlanta, for Appellee.

BIRDSONG, Presiding Judge.

The State appeals the order of the state court granting appellee Roger W. Holler's (a/k/a Roger W. Holler, Jr.) combined motion to suppress and motion in limine. It is enumerated the trial court erred by finding the officer lacked an articulable suspicion for the traffic stop and by excluding testimony as to the numerical results of the alco-sensor test for purposes of establishing probable cause to arrest.

The arresting officer is a certified police officer with five years' experience and assigned to the DUI Suppression Unit. Between the hours of 5:00 and 6:00 p.m., he was traveling in the left southbound lane of Riverdale Road when he observed appellee's vehicle make an abrupt U-turn heading back northbound. In the officer's opinion, the U-turn was not made safely and endangered the safety of northbound drivers, as traffic was heavy, and the U-turn was made in a "real abrupt manner." However, the road is flat with no hills or curves, there are 300 to 400 yards of visibility northbound at that point, and no signs are posted prohibiting U-turns. There were no noticeable equipment defects on appellee's car, no tag deficiency, and he made no apparent driving lane violations. There were two cars, both traveling in the southbound lanes, between the vehicles of the arresting officer and the appellee when the U-turn was made. The officer could not see whether appellee had his turn signals on when he made the U-turn. Other northbound cars were approaching (from an unspecified distance), coming through the intersection of Riverdale Road and Garden Walk. About 36 to 40 feet from appellee, one car with its blinker light on was stopped in a merging northbound lane awaiting clearance to enter a main northbound lane at the time appellee executed the U-turn. The officer observed that this car was delayed by appellee's turn. But no vehicle headed northbound, including the one in the merging lane, had to make any diversionary moves or had to "ram" on their brakes to avoid appellee's vehicle. After appellee made the turn, the officer activated his emergency equipment, made a U-turn himself and thereafter pulled appellee's vehicle over in the Winn-Dixie parking lot. Traffic was heavy at the time of the incident. In order for the officer to complete his U-turn, he had to wait for "some" cars approaching in the northbound lane to pass by and to halt other northbound cars. The officer could not recall from memory what the roadway lane configuration was at the location of the incident.

After the stop was accomplished, the officer observed that appellee's eyes were bloodshot and that he had a strong odor of alcoholic beverage on his breath and person. Appellee admitted to having drunk some rum and Coke but could not remember the amount consumed. He also told the officer that he knew he had made an improper U-turn and that his wife had told him not to make the turn. Appellee agreed to take field sobriety evaluations. The arresting officer testified that appellee incorrectly performed the finger-to-nose test, and appellee exhibited lack of smooth eye pursuit and nystagmus onset at an angle of 45 degrees when taking the horizontal gaze nystagmus evaluation (HGN). (Note: The State subsequently stipulated it would not go forward with any HGN evidence.) The arresting officer also testified that appellee tested "positive" for the presence of ethyl alcohol on the alco-sensor; however, an objection was sustained when the officer was asked to disclose appellee's alco-sensor test scores. The arresting officer testified that, based on the results of the field sobriety evaluations, appellee's unsafe driving, his observations of appellee, the odor of alcohol on appellee's breath combined with his admission to having had an alcoholic beverage to drink, and the numerical reading obtained on the alco-sensor test, he had formed the opinion that appellee was a less safe driver due to his consumption of alcohol. Thereafter, appellee was placed under arrest and cited both for DUI and improper U-turn.

Appellee's wife testified she was riding with her husband who was driving a rental car. They were looking for and found a grocery store located on the left side of the street, but drove by its entrance. As it looked like there was nothing in the road ahead and no lights were visible on either side of the road or in the approaching roadway intersection, they "decided ... to turn around and go back." Riverdale Road has two driving lanes in each direction and a middle turning lane. No signs were posted which prohibited U-turns. The wife was watching for oncoming traffic "to make sure it wasn't dangerous" to turn. Before the turn was executed, she saw the lights of two approaching cars, but they were at such a distance that the headlights looked like "little pin lights" coming the other way. There were no cars with their headlights on close behind the rental car. The U-turn was executed from the middle turning lane. The police unit's lights came on immediately after the turn was made; there was no intervening traffic moving northbound which had to pass before the arresting officer could execute his own U-turn. When the U-turn was made, appellee's wife had no concern about her safety or the safety of other vehicles. No cars were impacted by the U-turn; there were no oncoming cars in the vicinity when the U-turn was made. The U-turn was not made when cars were "pulling out" from stores; and appellee did not make a quick U-turn in front of oncoming traffic that night.

The trial court held there was no articulable suspicion for the traffic stop based upon its tacit conclusion that there had been no violation of OCGA § 40-6-121(3). The trial court found that, although the arresting officer thought the U-turn was made under unsafe conditions, there was no evidence presented as to "why [the officer] thought it was unsafe." The trial court also made the following supporting findings of fact: no other vehicles had to brake, had to swerve, or "had to do anything to avoid [appellee's] car when he made the U-turn." Held:

Case No. A96A1845

1. At trial the State in essence argued that, although numerical test results are not admissible at trial, an exception should be granted for the admission of this evidence at a suppression hearing for purposes of establishing probable cause for a DUI arrest. As a general rule, the numerical results of an alco-sensor test are not admissible in evidence, as the results of an alco-sensor test are not used as evidence of the amount of alcohol or drug in a person's blood. See Keenan v. State, 263 Ga. 569, 571(2), 436 S.E.2d 475; Porche v. State, 217 Ga.App. 325(1), 457 S.E.2d 578; Turrentine v. State, 176 Ga.App. 145, 146(1), 335 S.E.2d 630; see also Ayers v. City of Atlanta, 221 Ga.App. 381, 382(3), 471 S.E.2d 240. Even the characterization of the results of an alco-sensor test as "high" has been held to constitute inadmissible evidence of the degree of a suspect's intoxication. Sturdy v. State, 192 Ga.App. 71, 383 S.E.2d 632. However, evidence can be admitted, as was allowed in this case, as to whether a suspect tested positive or negative, or passed or failed, an alco-sensor test; this is consistent with the use of an alco-sensor "as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol." Turrentine, supra at 146(1); see Sturdy v. State, supra. Evidence also is admissible whether a suspect refuses to submit to an alco-sensor test. Keenan, supra at 572(2), 436 S.E.2d 475.

A trial court is vested with wide discretion in determining the admissibility of evidence. Spencer v. State, 260 Ga. 640, 646(8), 398 S.E.2d 179. Admission of evidence is a matter resting largely within the discretion of the trial court; an appellate court will not interfere with a trial court's ruling as to evidence admissibility absent an abuse of discretion. Gully v. Glover, 190 Ga.App. 238, 241(4), 378 S.E.2d 411; Santone v. State, 187 Ga.App. 789, 793, 371 S.E.2d 428. The State has failed to show an abuse of discretion by the trial court in following the general rule and declining to allow evidence as to the numerical score appellee received on an alco-sensor test to be admitted in evidence at a suppression hearing. See Porche, supra; cf. Mendoza v. State, 196 Ga.App. 627, 629(3), 396 S.E.2d 576. Accordingly, we will not interfere with that ruling. Gully, supra; Santone, supra. Further, as an alco-sensor test is not used as evidence as to the amount of alcohol or drugs in a person's blood, we decline this opportunity to create a blanket exception which would serve as precedent for making alco-sensor numerical test results admissible (for the limited purpose of establishing probable cause to arrest) at all future suppression hearings. The State's assertion of error as to this matter is without merit.

2. The State enumerates that the trial court erred in granting appellee's combined motion to suppress or in limine when it ruled that the arresting officer lacked articulable suspicion to stop appellee's car. The burden of proof of establishing that appellee was not subjected to an illegal seizure of his person rests upon the State. State v. Goodman, 220 Ga.App. 169, 170(1), 469 S.E.2d 327; see State v. Johnston, 160 Ga.App. 71, 74, 286 S.E.2d 47, aff'd on other grounds, 249 Ga. 413, 291 S.E.2d 543.

(a) "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of [the Fourth Amendment]. [Cits.] An...